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Riley v. California sparks disagreement about a cellphone warrant in United States v. Griffith, No. 13-3061, 2017 U.S. App. LEXIS 15636 (D.C. Cir., Aug. 18, 2017). In Riley, the Supreme Court requires a warrant to search a cellphone found incident to arrest. Issues in Griffith include requirements for a cellphone warrant in a suspect’s home, whether a phone can be searched after execution of a cellphone warrant, the good faith exception to the exclusionary rule, and personal liability for police.

These issues summarized below are discussed in more detail in our article in Law360 (available by subscription here). We predict more litigation about this warrant because the dissent explicitly hopes the Circuit en banc or the Supreme Court will intervene “to cure today’s grievous error.” Read more.

Where and When to Search with CellPhone Warrant

The majority, seeking to prevent a search in “all corners of a home” based on a cellphone warrant, feels Riley does not support belief a phone containing evidence is in the home. The dissent finds it reasonable to think a phone containing evidence is there.

The opinions also dispute whether the seized phones could be searched. The majority says the phones could be searched based solely on a cellphone warrant. The dissent agrees with the government that the officers intended to seek a subsequent warrant to search contents of the phones.

Good Faith and Liability

Beyond the cellphone warrant, the opinions clash about the good faith exception to the exclusionary rule. The majority refuses to apply the exception because it is “entirely unreasonable” for an official to believe the affidavit provides probable cause. The dissent finds the officers “scrupulously observing the letter of the law” because of their detailed affidavit. Despite the majority’s claim not to judge the officers’ motives, the dissent finds the majority is passing judgment on them.

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